ALHAJI MUSA SANUSI OLAIYA v. MR. BONIFACE OKEKE
(2012)LCN/5728(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/IL/52/2010
RATIO
“The Supreme Court has given its blessing to this age long cardinal principle of law in myriads of judicial authorities. Thus, in the case of Clay Ind. (Nig.) Ltd. v. Aina (1997) 8 NWLR (pt. 516) 208 at 223, Iguh, JSC, lucidly stated. “I cannot fail to condemn in the strongest possible terms the unnecessarily lengthy and repetitive nature of the issues set out by the appellant for the determination of this court. It cannot be over-emphasized that the object of the formulation of issues for determination in an appeal is to enable the parties narrow the issues arising from the grounds of appeal filed in the interest of clarity, brevity and accuracy, thus enabling the court to consider together a number of associated and related grounds of appeal within the issue to which they are related in the determination of the appeal. See Raphael Agu v. Christian Ikewibe (1991) 3 NWLR (pt. 180) 385 at 401…… An unnecessary proliferation of issues is totally undesirable and has times without number been frowned at and discouraged by this Court. See Ogbuanyinya v. Obi Okudo (No. 2) (1990) 4 NWLR (pt. 146) 551 at 567 and Anie v. Uzorka (1993) 8 NWLR (Pt. 309) 1 at 17? whereas, therefore, an issue to be determined can take care of, and relate to a number of grounds of appeal, it is undesirable to split a ground of appeal unnecessarily into several or a number of issue…” See, also, Ogunbiyi v. Ishola (1996) 5 SCNJ 143; A-G Bendel v. Aideyan (1989) 4 NWLR (pt.118) 646; Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) at 214/(1991) 1, SCNJ 25; Ayisa v. Akanji (1995) 7 NWLR (Pt. 406) 129/(1995) 7 SCNJ 45; Obijiaku v. Offiah (1995) 7 SCNJ 142; Oyekan v. Akinrinwa (1996) 7 NWLR (pt. 459) 128; Yusuf v. Akindipe (2000) 8 NWLR (pt. 669) 376; Oseni v. Bijulu (2010) ALL FWLR (Pt 511) 813; Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 506; Okonobor v. D.E. & S.T. Co. Ltd. (2010) 17 NWLR (Pt. 1221) 181; Okwuagbala v. Ikwueme (2010) 19 NWLR (Pt. 1226) 54; Teriba v. Adeyemo (2010) 11 NWLR (pt. 1211) 242.” Per OGBUINYA, J.C.A.
“In attending to the objection, I will first tackle the appellant’s vitriolic attack on the respondent’s preliminary object to the effect that no leave of this court was sought and obtained before it was filed. The contention is equivalent to an objection to the competence of the preliminary objection itself which, in turn, impinges on the jurisdiction of this court to entertain it. This is heightened by the fact that, in law, where leave, which imports permission is required and it is not sought and obtained, then the court will be disrobed of the jurisdiction to adjudicate over such a matter, see Otu v. ACB Int’l Bank of plc. (supra)/(2008) 3 NWLR (Pt. 1073) 779.” Per OGBUINYA, J.C.A.
“A miscarriage of justice, a mantra constantly employed by losing parties in court proceedings, is a departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. It, also, connotes failure of justice – when what happened is not justice according to law, see Amadi v. NNPC (2000) 10 NWLR (pt.674) 76; Ojo v. Anibire (2004) 5 SCNJ 56; State v. Ajie (2000) 7 SCNJ 1. By law, a miscarriage of justice occurs in a proceeding before a court when that court, after a proper examination of the case including the evidence, is of the view that it is reasonably probable that a result more favourable to the appealing party would have been arrived at without the error complained of, see Akpan v. Bob (supra).” Per OGBUINYA, J.C.A.
JUSTICES
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
ALHAJI MUSA SANUSI OLAIYA Appellant(s)
AND
MR. BONIFACE OKEKE Respondent(s)
OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal germinated from the judgment of the High of Court Kwara State in Suit No: KWS/10/2008, Coram E. B. Mohammed, J. delivered on 23/07/2009, wherein the appellant’s action was dismissed.
Flowing from the record of appeal and other processes filed, the facts of the case, which culminated in this appeal, are simple. The appellant and the respondent were the claimant and the defendant respectively in the lower court. Sometime in 2005, the appellant, a businessman, approached the respondent for a financial assistance of N50,000.00 to enable him augment his financial obligation regarding a contract he was executing in Abuja. The respondent acceded to the appellant’s request on the condition that he pledged his Peugeot 504 SR. saloon car with registration number AZ 303 ABJ, Abuja, Engine No. 39374707 and chasis No. VF 3504MDIF3974707 as collateral security for the loan. The parties entered into a written agreement on 13/01/2005 to the effect that the vehicle was sold to the respondent with an option to the appellant to repurchase same on or before 12/02/2005 for the fixed price of N60,000.
Subsequently, the appellant claimed that he went to the respondent, on 10/02/2005, to exercise his right of repurchase of the vehicle, but the respondent refused on the reason that it was sold to him and he had sold same to a third party. On the other hand, the respondent claimed that the appellant defaulted in redeeming the pledged vehicle as agreed and he repaired it and sold it to a third party on 05/07/2005.
Following the above background facts, the appellant sued the respondent, via a writ of summons, in the lower court on 28/01/2008. In the said suit, the appellant claimed, against the respondent to wit: a declaration that the purported sale of the vehicle was null and void, an order for a return of the vehicle or N500,000.00 as its worth, interest on the said N500,000.00, general damages of N100,000.00 and cost of the suit. The respondent, duly, reacted to the appellant’s action. Thereafter, the matter proceeded to full-scale trial.
During the trial, the appellant testified in person without calling any other witness. Similarly, the respondent gave evidence in person without fielding any other witness. At the closure of the cases of the parties, they addressed the lower court, vide filing and adoption of written addresses.
The lower court, on 23/07/2009, delivered its decision wherein, on page 15 lines 18 and 19 of the printed record, it held:
“Accordingly, all the 6 heads of claim numbered 9(a) to (f) in the claimant’s statement of claim are hereby dismissed for want of proof”.
The appellant was aggrieved by that decision. Sequel to that dissatisfaction, the appellant filed a one-ground notice of appeal, found on pages 53-54 of the record, in which he prayed this court to: “Allow the Appeal by setting aside in its entirety the judgment of the trial court delivered on 23/07/2009 and grant all the Appellant’s reliefs”. In consonance with the rules of this court, the parties filed and exchange their briefs of argument.
The appeal was heard on 20/11/2012. In that wise, learned counsel for the appellant, Joseph Oboite, Esq., adopted the appellant’s brief of argument, filed on 03/06/2011, but, deemed filed on 15/02/2012, and the appellant’s reply brief, filed on 26/03/2012, both settled by S. A. Bamidele, Esq., as representing his arguments in support of the appeal. He prayed the court to allow the appeal. In the same vein, learned counsel for the respondent, O. M. Lawal, Esq., intimated the court that the respondent filed a notice of preliminary objection on 02/10/2012 with its argument incorporated in the respondent’s brief. Learned counsel adopted the respondent’s brief of argument, filed on 15/03/2012, as forming his submissions in support of the preliminary objection and against the appeal.
He urged the court to uphold the objection or to dismiss the appeal.
The law commands me to attend to the respondent’s preliminary objection first. This is because, the preliminary objection more or less evinces a jurisdiction issue which is aimed at terminating the life span of a matter in limine, see Uwazurike v. A.G. Fed (2007) 8 NWLR (pt. 1035) 1; B. A.SF (Nig.) Ltd. v. Faith Enterprises Ltd. (2010) 4 NWLR (pt. 1183) 104; SPDCN Ltd. v. Amadi (2011) 14 NWLR (pt. 1266) 157; FBN Plc. v. T.S.A. Ind. Ltd. (2010) 15 NWLR (pt. 1216) 247.
Consideration of the preliminary objection.
In the respondent’s preliminary objection, he contended that:
“… the Appellant’s brief of argument is incompetent and will pray the court to dismiss and/or discountenance same.
GROUNDS OF OBJECTION
1. The Appellant in his Notice of Appeal filed only an omnibus ground of appeal and formulated 3 issued (sic) for determination in his brief of argument.
2. The Appellant never filed an additional grounds of Appeal nor seek and obtain leave of the Honourable Court before the incorporation of the 3 issues formulated in his brief.
3. The 3 issue (sic) formulated do not relates or flow from the lone omnibus ground of Appellant (sic)”
Arguments on the preliminary objection.
Learned counsel for the respondent/objector submitted that the appellant’s 3 issues formulated for determination from his lone ground of appeal amounted to proliferation of issues contrary to the requirement of the rules of this court. He referred to Order 18 rule 3 of the court of Appeal Rules, 2011. He posited that the 3 issues proliferated from the lone ground of appeal were manifestly defective and incompetent. He further submitted that while two or rnore grounds of appeal could give rise to one issue for determination, parties could not formulate more than one issue from a single ground of appeal. He cited the cases of Afribank Nigeria Plc v. Yelwa (2011) All FWLR (pt.585) 296; Oseni v. Bijulu (2011) ALL FWLR (pt. 511) 813; Nwaigwe v. Okere (2005) ALL FWLR (Pt. 43) 84.
Learned counsel contended that the appellant did not marry the issue(s) formulated with the lone ground of appeal. He added that all the 3 issues formulated by the appellant purporting to arise from the court and omnibus ground of appeal were equally incompetent and liable to be struck out. He further contended that if the, courts upheld his submissions the effect would be that there was, no issues(s) formulated for the lone omnibus ground of appeal of the appellant with the resultant effect of making the whole appeal incompetent. He urged the court to uphold the objection.
For the appellant, learned counsel submitted that since the lone ground of appeal is valid and competent, then appeal is competent. He cited the case of ACB Int. Bank Ltd. v. Otu (2008) ALL FWLR (pt. 406) 1829 to support his submission. He postulated that a court has the power to formulate an issue suo motu from grounds of appeal, where necessary in order to meet the justice of a matter brought before it. He placed reliance on the case of Chief Jonah Ikalama v. Daniel Derecoma (2008) ALL FWLR (pt. 433) 1376. He reasoned that what the respondent was praying the court to do was to sacrifice substantial justice for technical justice which would defeat its duty. He cited the case of Omogu v. FRN (2008) ALL FWLR (Pt. 415) 1671 to support his view.
Learned counsel argued, per contra, that the appellant married the issues to the grounds when he stated in paragraph 4.00 on page 7 of his brief that at the three issues covered, the omnibus ground of appeal and they would be argued together. In the alternative, learned counsel sought the leave of court to withdraw and/or abandon the first and second issues and adopt issue three, with the argument contained therein, which he intended to do at the hearing of the appeal. He contended that the respondent did not seek the leave of the court before bringing the objection. He urged the court ho overrule the objection.
Resolution of the Preliminary Objection
In attending to the objection, I will first tackle the appellant’s vitriolic attack on the respondent’s preliminary object to the effect that no leave of this court was sought and obtained before it was filed. The contention is equivalent to an objection to the competence of the preliminary objection itself which, in turn, impinges on the jurisdiction of this court to entertain it. This is heightened by the fact that, in law, where leave, which imports permission is required and it is not sought and obtained, then the court will be disrobed of the jurisdiction to adjudicate over such a matter, see Otu v. ACB Int’l Bank of plc. (supra)/(2008) 3 NWLR (Pt. 1073) 779.
The raising of a preliminary of objection is governed by the provision of order 10 rule 1 of the court of Appeal Rules, 2011 which provides:
“ORDER 10 – NOTICE OF PRELIMINARY OBJECTION
1. A Respondent intending, to rely upon a preliminary objection to the hearing of the appeal; shall give the Appellant three clear days notice thereby before, the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time”.
The provision is plain and susceptible to easy comprehension, even by uninformed legal minds. To this end, I will, in keeping with the tenets and spirit of the established law, accord the words therein their ordinary meaning without any interpolations, see Berliet v. Kachalla (1995) 12 SCNJ 147; Uwazurike v. A-G., Fed. (Supra). It does not decree that a respondent raising a preliminary objection shall seek and obtain the leave of this court before embarking on his exercise of that right enshrined therein. The respondent filed his notice of preliminary objection on 02/10/2012 with the registry of this court. The appeal was heard on 20/11/2012. Indisputably, between 02/10/2012 and 20/11/2012 was a period about 48 days, far in excess of the three clear days notice as ordained by the provision. The respondent’s notice preliminary objection has his grounds of objection encapsulated therein. It means that the respondent has, amply, satisfied the requirement of the provision regulating the filing of his preliminary objection. I, therefore, hold that the appellant’s objection to the preliminary objection has no place in law. It fails Accordingly, I overrule it.
The appellant made another attempt to exterminate the preliminary objection in limine. In this connection, he applied to withdraw and/or abandon issues one and two, leaving issue three, adding that he intended to do that at the hearing. It is curious that the appellant made that application after he had, tenaciously, joined issues with the respondent on the preliminary objection. In my view, that application ought to have come first. Having responded to the preliminary objection, it was too late in the day for him to turn round to make such an application – a smart attempt to escape through the backdoor when the legal battle line was already drawn. The appellant had the unfettered right to apply to amend his brief of argument along that line before locking horns with the respondent on the preliminary. The appellant intended to withdraw the two issues during the hearing of the appeal. That intention never manifested during the hearing of the appeal as he never applied to, withdraw or abandon the two issues. As it stands, the application is belated, especially as the preliminary objection calls to question the jurisdiction of this court over the entire appeal thereby necessitating its consideration. I decline the appellant’s inviting invitation to grant it. Accordingly, I refuse it.
Having dispensed with the legal obstacles erected/mounted on the path of the preliminary objection by the appellant, the coast is cleared for its consideration on the merits. In this perspective, I will begin with an adjunct point/attack which the respondent launched against the appeal that the appellant did not relate the issues to the ground of appeal. I have my doubts if the respondent’s onslaught against the appeal, failure to marry the issues to the ground(s), goes to the props of the appeal as to be potent enough to ruin it. The reason is simple. The procedure of tying issues to grounds that give rise to them is, merely, a commendable and desirable practice, an infringement of which is taken as an irregularity. In the case of JFS Inv. Ltd. v. Brawal Line Ltd. (2010) 18 NWLR (pt. 1225) 495 at 520, Adekeye, JSC, stated:
“I have considered the preliminary objection and the submission of counsel. It is apparent that the core issue in the objection is failure of the appellant to relate each of the issues to the grounds of appeal it was formulated from in the amended notice of appeal and not that the issues were not predicated on the grounds of appeal. The objection is clearly not against the; competency of the issue. Though there is no known rule of court to support this practice, it is put in place and followed religiously by counsel for ease of reference. When briefs are properly filed and the appeal is ripe for hearing, the issues are not incompetent, in the process of doing substantial justice, the court shall not hesitate to bend backwards to glean through the grounds of appeal and marry them with issues raised for determination in the briefs. After all, briefs of parties and the issues raised therein are meant to assist the court in quickly identifying the issue in controversy between the parties”.
The above ex cathedra pronouncement puts paid to the respondent’s contention on this tangential point which is world away from the position of the law. At any rate, it is a bald fact that the appellant’s notice of appeal hosts only one (omnibus) ground of appeal. On this note, the need to link the, issues to the one ground does not arise as the former are necessarily married to the latter by the non-existence of any other grounds. In the light of these reasons, the respondent’s objection on this ground is a far cry from the position of the law. Since this ground of attack is unfounded in law, I will be loath to terminate the appellant’s appeal, in limine, premised on it. In the circumstances, I hold that this ground of objection is a non-starter and it fails.
The gravamen of the respondent’s objection, as can be gleaned from his submissions, is that the appellant violated the law by formulating three issues from one (omnibus) ground of appeal. Since the introduction of brief-writing in the Supreme Court and Court of Appeal, it has been settled, beyond any peradventure of doubt, that a party can only distill one issue from one or two or more grounds of appeal, but is prohibited from framing more than one issue from a ground of appeal. The latter has earned the sobriquet proliferation of issues. The Supreme Court has given its blessing to this age long cardinal principle of law in myriads of judicial authorities. Thus, in the case of Clay Ind. (Nig.) Ltd. v. Aina (1997) 8 NWLR (pt. 516) 208 at 223, Iguh, JSC, lucidly stated.
“I cannot fail to condemn in the strongest possible terms the unnecessarily lengthy and repetitive nature of the issues set out by the appellant for the determination of this court. It cannot be over-emphasized that the object of the formulation of issues for determination in an appeal is to enable the parties narrow the issues arising from the grounds of appeal filed in the interest of clarity, brevity and accuracy, thus enabling the court to consider together a number of associated and related grounds of appeal within the issue to which they are related in the determination of the appeal. See Raphael Agu v. Christian Ikewibe (1991) 3 NWLR (pt. 180) 385 at 401….. An unnecessary proliferation of issues is totally undesirable and has times without number been frowned at and discouraged by this Court. See Ogbuanyinya v. Obi Okudo (No. 2) (1990) 4 NWLR (pt. 146) 551 at 567 and Anie v. Uzorka (1993) 8 NWLR (Pt. 309) 1 at 17… whereas, therefore, an issue to be determined can take care of, and relate to a number of grounds of appeal, it is undesirable to split a ground of appeal unnecessarily into several or a number of issue…”
See, also, Ogunbiyi v. Ishola (1996) 5 SCNJ 143; A-G Bendel v. Aideyan (1989) 4 NWLR (pt.118) 646; Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) at 214/(1991) 1, SCNJ 25; Ayisa v. Akanji (1995) 7 NWLR (Pt. 406) 129/(1995) 7 SCNJ 45; Obijiaku v. Offiah (1995) 7 SCNJ 142; Oyekan v. Akinrinwa (1996) 7 NWLR (pt. 459) 128; Yusuf v. Akindipe (2000) 8 NWLR (pt. 669) 376; Oseni v. Bijulu (2010) ALL FWLR (Pt 511) 813; Eke v. Ogbonda (2006) 18 NWLR (Pt. 1012) 506; Okonobor v. D.E. & S.T. Co. Ltd. (2010) 17 NWLR (Pt. 1221) 181; Okwuagbala v. Ikwueme (2010) 19 NWLR (Pt. 1226) 54; Teriba v. Adeyemo (2010) 11 NWLR (pt. 1211) 242.
It is, abundantly and undoubtedly, clear, as verifiable from pages 53-54 of the printed record, that the appellant identified only one ground of appeal in his notice of appeal filed on 08/10/2009. The one ground is that: “The judgment is against the weight of evidence.” In the proper legal parlance, that translates to an omnibus ground of appeal which, synoptically, is designed to allow complaint on evaluation of evidence and it encompasses grouse against improper evaluation of evidence by a trial court. It implies, inter alia, that there is no evidence which, if accepted, would buttress the findings of a trial court. See Anyaoke v. Adi (1986) 17 NSCC (Pt. 11) 799; Ajibona v. Kolawole (1996) 12 SCNJ 270; Aderibigbe v. Abidoye (2009) 10 NWLR (pt. 1150) 592; Nwokidu v. Okanu (2010) 3 NWLR (pt. 1181) 362.
Flowing from the appellant’s one (omnibus) ground of appeal, he formulated three issues for determination of the appeal. This, going by the current position of the law displayed above, seriously, runs foul of the hallowed rule on formulation of issues for determination of appeals. The appellant’s act is a quintessence of proliferation, or multiplication of issues which is very hostile to the, firmly, established law on brief-writing. The three issues are far in excess of the number of the one ground raised by the appellant when, by law, it can only give birth to a solitary issue. Indeed, the three issues are so prolix and proliferate as to be more in number than the appellant’s one ground, of appeal. The law, as dissected above, does not accommodate nor countenance the act of duplication of issues which the appellant, intentionally or inadvertently, indulged in. I, therefore, hold, after consulting the law, that the appellant’s formulation of three issues from his lone (omnibus) ground of appeal is very offensive to the law.
That takes me to the consequences of proliferation of issues to an appeal. Hitherto, where no objection, was raised to multiplication of issues committed by a party, invariably the appellant, the apex court would demonstrate that the law frowned on it, discouraged and admonished parties or counsel against it and proceed to consider them or the alternate issues framed by an opponent. see Ogunbiyi v. Ishola (supra); A-G, Bendel v. Aideyan (supra); Utih v. Onoyivwe (supra); Oyekan v. Akinrinwa (supra); clay Ind. (Nig.) Ltd. v. Aina (supra); Yusuf v. Akindipe (supra); Obijiaku v. Offiah (supra); Eke v. Ogbonda (supra).
It appears that the law has inched away from mere admonition and discouragement against duplicity of issues from one ground of appeal to discountenance and refusal to entertain them. In the case of Ayisa v. Akanji (supra) (1995) 7 SCNJ 245 at 253, Onu, JSC, bluntly stated:
“It is now well settled… that issues for determination must of necessity in pursuant to the rules of courts, be limited by, circumscribed and fall within the scope of the grounds of appeal filed. Since they must perforce arise from the grounds of appeal and cannot raise issues outside their contemplation – see Adelaja v. Fanoik (1990) 2 NWLR (pt. 131) 137 at 148; Chinweze v. Masi (1989) 1 NWLR (pt. 97) 254 and Mumodu v. Momoh (1991) 1 NWLR (pt. 169) 608, they must not be so prolix and proliferate as to be more in number than the grounds on which they are based. See Agu v. Ikewibe (1991) 3 NWLR (pt. 130) 395 at 401. This was what exactly happened in the instant case and it is for this reason; that I regard the multiple issues submitted, at the – instance of the Plaintiffs/Respondents as well as for the 4th and 5th Respondent respectively, as being of no avail, they are accordingly discountenanced in my consideration”.
By the same token, in the case of Okonobor v. D. E. & S.T. Co. Ltd. (supra), Onnoghen, JSC, approved and re-echoed the pronouncement in Ayisa’s case (supra) thus:
“It is not in dispute that appellants filed a single ground of appeal out of which their counsel formulated two issues for determination. It is settled law that proliferation of issues is unaccepted in our appellate courts. While counsel is permitted to formulate an issue out of a ground or ground of appeal, he cannot formulate two issues out of a ground of appeal as in the instance appeal. See Ogoyi v. Umagba (1995) 9 NWLR (pt. 419) 283 at 297. The issues are therefore incompetent and liable to be struck out”.
See, also, Okwuagbala v. Ikwueme (supra).
The strict and sterner stance taken by the apex court against proliferation of issues in the cases of Ayisa v. Akanji (supra);
Okonobor v. D. E. & S. T. Co. Ltd. (supra) and Okwuagbala v. Ikwueme (supra) seals the fate of the appellant’s appeal. The reason is not far-fetched. These authorities are later-in-time than those in which the court was liberal by merely admonishing and discouraging parties or counsel from engaging in duplicity of issues. I am willy -nilly bound, on the strength of stare decisis, to follow the decisions in those cases in which proliferated issues were declared incompetent as they represent the current position of the law. In this wise, I draw on the case of Osakue v. F.C.E, Asaba (2010)10 NWLR (pt, 1201) 1. On this premise, I declare the three issues, distilled from the appellant’s single (omnibus) ground of appeal, incompetent and unwelcome to this appeal. The net and inimical effect of that incompetence is not a moot point. The appellant’s lone (omnibus) ground of appeal, whence they were generated from, becomes barren in the sense that no issue has flown from it. In the eyes of the law, it is abandoned, waiting earnestly to be jettisoned from the appeal. Having, with the aid of the law, found, both the lone ground and the three issues, grounded on it, as incompetent, the law gives me the unbridled licence to do away with them in this appeal. In the result, I strike them out for want of competence.
Overall, with the expunction of both the appellant’s only singular ground of appeal and the three issues, illegimately, derived from it, the appellant’s appeal is, axiomatically, rendered nude and incompetent. The reason is obvious. The notice of appeal is, totally, void of any ground of appeal which is the heart beat of any appeal. Simply put, the appellant has no pending appeal and this court is drained of the requisite jurisdiction to entertain a non-existent appeal. On this score, I find merit in the respondent’s preliminary objection and uphold it. Accordingly, I strike out the appellant’s appeal on account of incompetence. The parties shall bear their respective costs of prosecuting and depending the doomed-appeal.
Consideration of the appeal.
Ordinarily, having struck out the appeal for being incompetent, that would have been the end of my arduous judicial assignment. However, it is not. This is the penultimate court – next to the apex court on the Judicial ladder. In view of this hierarchical position, the law insists that I showcase my view on the appeal for the benefit of the Supreme Court, on the likely event of appeal to it. This is to, ultimately, obviate the need for the apex court to remit the appeal to this court if it has a contrary view on the preliminary objection thereby saving, judicial time and courts for costs and litigants alike, see Ada v. NYSC (2004) 13 NWLR (pt. 891) 639; Tanko v. UBA Plc. (2010) 17 (pt. 1221) 80; Obiuweubi v. CBN NWLR (2010) 17 NWLR (pt. 1247) 465; Stowe v. Benstowe (2012) 9 NWLR (pt. 1306) 450; Elelu-Habeeb v. A-G, Fed. (2012) 13 NWLR (pt. 1318) 423. In due obeisance to this current state of the law, I will proceed to consider the merit of the appeal.
The appellant, in his brief of argument, crafted three issues for the determination of the appeal to wit:
“1. Whether the appellant did not attempt or made move before 12/2/2005 to pay the indebtedness to the respondent.
2. Whether it is not legally wrong for the respondent to dispose of the Appellant’s vehicle.
3. Whether the collusion of the Trial Court in its Judgment of 23/7/2008 was right and equitable”.
On the other hand, the respondent, in his brief of argument, distilled a solitary issue for determination of the appeal viz.
“Whether or not the Appellant has by credible evidence establish (sic) the claims before the trial court and therefore entitled to the reliefs sought against the Respondent.”
I had ruled that the appellants’ three issues were ruined because they flouted the rule on proliferation of issues. In the light of that reason, I will consider the appeal on the footing of the respondent’s singular issue.
Arguments on the issue.
Learned counsel for the appellant submitted that the assumption and/or understanding of the lower court that 110/12/2005 meant 10/12/2005 was outrightly wrong and amounted to injustice against the appellant. He posited that if the lower court had intended to do justice, it would have referred to paragraph 7 of the appellant’s statement of claim since it was obvious that 110/12/2005, referred to by the appellant, was a typographical error. He stated that the appellant, under cross-examination, testified that he attempted to retrieve the vehicle from the respondent before 12/02/2005. He insisted that mere fact that the figure 110/12/2005 was mistakenly or typographically written by the appellant did not mean he meant 10/12/2005 as assumed or understood by the lower court. He wondered where the lower court got, the 10/12/2005 when neither of the parties mentioned it and that was against the principle of justice. He placed reliance on the cases of Omidiora v. Fed. Civil Service Commission (2005) All FWLR (pt. 425) 18 and Odubeko v. Fowler (1993) 9 SCNJ 185. He maintained that even in the appellant’s written statement on oath, he never said “or 10/12/2005” as held by the lower court; adding that its holding had occasioned a great miscarriage of justice against the appellant.
Learned counsel contended that the lower court relied, heavily, on its erroneous conclusion on the date written as 110/12/2005 without recourse to the date contained in the statement of claim and the appellant’s evidence under cross-examination and that amounted to speculation and conjecture not allowed in law. He cited the case Obasi Brothers Merchant Co. Ltd. v. M.B.A.S. Ltd. (2005) All FWLR (pt. 261) 216 to support that contention. He prayed the court to interfere with and upturn those erroneous findings of the lower court which occasioned a grave miscarriage justice against the appellant. He relied on the case of Gbafe v. Gbafe (1996) 6 NWLR (pt. 455) 417.
He further submitted that the lower court was sufficiently furnished with evidence and adequately guided, to properly construe the date mistakenly written as 110/12/2005 to mean the same correctly written as 10/02/2005 in the statement of claim since it must take cognizance of the form of date obtainable in the calendar. He described the decision of the lower court as perverse and urged the court to interfere. He placed reliance on the cases of C.S.S. Bookshops Ltd. v. R. T. M. C. Rivers state (2006) All FWLR (pt. 319) 819 and Mogaji v. Odofin (1978) 4 SC 91.
Learned counsel argued that the lower court misdirected itself on its findings that exhibits A and B1 did not make provision for payment interest to the respondent or obtaining prior consent of the appellant before the respondent could dispose off the car. He posited that there was no document admitted as exhibit B1 but Exhibit B before the lower court. He added that the lower court ought not to have placed reliance on exhibit B1, not before it as that amounted to injustice to the other party. He cited the case of Alhaji Aban Mararaban Kwari v. Livious Rago (2000) FWLR (pt. 22) 1129 to support his arguments. He postulated that where a party relied on a written agreement, the document ought to be tendered in evidence to enable the court consider it and arrive at a just decision. He relied on the case Federal Mortgage Finance Ltd. (Sic) 2005 All FWLR (pt. 248) 1667. He maintained that the lower court’s use of exhibit B1 was perverse and occassioned a miscarriage of justice against the appellant. Learned Counsel, based on those submissions, prayed the court to allow the appeal.
On behalf of the respondent, learned counsel submitted that the appellant failed woefully to discharge the evidential burden, placed on him by law, on the preponderance of evidence. He enumerated settled facts distilled from the evidence before the lower court and insisted that the appellant did not discharge that burden placed on him by sections 136 and 137 of the Evidence Act. He referred to the case of UBN v. Ozigi (1994) 3 SCNJ 42 to support to his postulation. He posited that the best way to satisfy a court about the existence of any matter was by adducing credible, sufficient and satisfactory evidence about it by the party who asserted; adding that a court, not being a father Christmas, would not give to a party that which he did not ask.
Learned counsel contended that the lower court ought not refer to appellant’s statement of claim to reconcile which of the two dates (10/12/2005 and 110/12/2005) he had in mind because the appellant’s statement on oath, and not his statement of claim, was the evidence before the court, the statement on oath superseded the statement of claim and the so called mistake ought to have been corrected by an amendment, either orally or by motion, at the behest by the appellant. He insisted that the appellant was content with 110/12/2005 date contained in paragraph 5 of his statement of oath. He referred to paragraphs 4 and 6 of the appellant’s statement on oath where there mere inconsistencies as to dates – 15/1/2005 instead of 13/1/2005 – and figure 505 instead of 504 respectively against the appellant’s evidence. He stated that no miscarriage of justice was occasioned by the decision of the lower court which, essentially, was based on the existent pleading and evidence of the appellant presented before it. He urged the court to hold that the sound principles of law referred to by the appellant in cases of Omidiora v. Fed. Civil Service Commission (Supra); Odubeko v. Fowler (Supra); Obasi Brothers Merchant Co. had v. M. B. A. S. Ltd. (Supra) were cited out of con and not on all fours with the present case.
He further urged the court not to interfere and set aside the judgment of the lower court as it was not perverse, but based on evidence adduced before it. He maintained that exhibit B1 was tendered and received in evidence, without objection from the appellant, on 23/02/2009 on page 35 of the second. He noted that exhibit B01, as marked by the respondent’s counsel on page 16 of the record, was what the lower court referred to as exhibit B1 in the judgment and that it had the same content in the exhibit A. He reasoned that the appellant never demonstrated how the content of exhibit B1 adversely affected his case or occasioned a miscarriage of justice. He solicited the court to affirm the decision of the lower court by dismissing the appeal as that would accord with the principle long laid down in the case of Mogaji v. Odofin (supra). Learned counsel, based on, the above arguments, prayed the court to dismiss the appeal.
On points of law, learned counsel for the appellant submitted that none of the parties gave evidence that the contents of exhibit A and B01 were the same; adding that counsel’s argument would not take the place of evidence. Learned counsel maintained that all the cases cited by the appellant, including Mogaji v. Odofin, (supra), were in apposite and irrelevant to the matter. He prayed the court to allow the appeal.
Resolution of the issue.
The appellant launched some important vitriolic attacks against the decision of the lower court. The foremost among them was that the lower court was wrong to have assumed 110/12/2005 to be 10/12/2005 as the date he approached the respondent for the repurchase of the vehicle. It is imperative to show, albeit briefly, the background circumstances which led to the lower court’s assumption. The purchase agreement between the parties was, duly, executed on 13/01/2005. It was received in evidence as exhibit A and in paragraph 3 thereof it donated to the appellant the right to repurchase the sold vehicle for an agreed fee of N60, 000.00 on or before 12/02/2005. In paragraph 7 of the appellant’s statement of claim, located on pages 3-5 of the record, 10/02/2005 was correctly inserted as the date he went to the respondent for a repurchase of the vehicle. However, in paragraph 5 of the appellant’s written statement on oath, found on pages 6-7 of the record, he stated the date he approached the respondent for the repurchase of the vehicle was 110/12/2005 The appellant, on 10/07/2008, as shown on page 33 of the record, adopted his said written statement on oath as his evidence-in-chief before the lower court.
To begin with, what the lower court did about 110/12/2005 was to draw inference, an act permissible in law, see Okoye v. Kpajie (1992) 2 SCNJ 290; Akpan v. Bob (2010) 17 NWLR (pt. 1223) 421. That inference is world away from speculation or conjecture which the appellant labelled it. It follows that, since the two dates 10/02/2005 and 110/12/2005, were not only in contest but in sharp contrasts with one another, the lower court had the mandate of the lower to infer that 110/12/2005 meant 10/12/200508 even 11/12/2005. This is more so when 110/12/2005 is not cognizable in the lunar calendar within the corpus of our laws. A court of law, like the lower court, is manned by human beings that are, naturally, fallible, and as such cannot be robotic in the performance of its judicial functions.
Besides, the 110/2/2005, averred in the appellant’s deposition, which he adopted, wholeheartedly, was his undiluted evidence -in-chief regarding the date he allegedly approached the respondent for the repurchase of the vehicle. That date, 110/12/2005, as it were, apart from being non-existence in the province of the lunar calendar, is diametrically opposed to 10/02/2005 stated in the appellant’s pleading. In a nutshell, the appellant’s evidence, on the exact date he went to the respondent, was, wholly, at variance with his pleadings. The consequence of that antithetical posture is far-reaching. It is that the very piece of evidence goes to no issue, see Oseni. v. Bijulu (supra); Ugoji v. Onukogu (2005) 16 NWLR (pt. 950); Osuji v. Ekeocha (2009) 16 NWLR (pt. 1166) 81; Momo v. Umoru (2011) 15 NWLR (pt. 1270) 217. Since that piece of evidence goes to no issue, for not being in tandem with the pleading, it ceases to command any force to warrant utilization by the court in favour of the appellant. The aftermath of that is dire. It means that the appellant’s postulation that they went to the respondent on 10/02/2005 stands on quicksand as it cannot be decked/adorned with any toga of credibility.
Moreover, the evidence of the appellant, under the crucible of cross-examination, is another albatross/dent on his insistence that he approached the respondent on 10/02/2005. On page 34, lines 4-10 of the printed Record, the appellant, answered;
“There is an argument, between me and the Defendant, witness shown the agreement Exhibit “A” which he identified and agreed that he signed before adopting same. The Defendant took N10,000.00 interest twice from me. These payments were made at the end of each month as agreed. It was at the third attempt that the Defendant refused to collect. The principal sum and the interest for the 3rd time but the son refused to collect it from me as he has authority to do so from the Defendant.” (Italics mine).
The italicized portions of those pieces of evidence, elicited from the appellant under the furnace of cross-examination, seriously, belie the appellant’s evidence-in-chief to the effect that he approached the respondent on 10/02/2005. Indeed, both versions are irreconcilable, yet they dwell on a material point. In the language of the law, they are inconsistent par excellence, one affirms the opposite of the other, see Wachukwu v. Owunwanne (2011) 14 NWLR (pt.1266) 1. The law gives me the nod to disregard contradictory evidence of a witness(es) or party on substantial point in any proceedings. In keeping with the law, I will not hesitate to discountenance the appellant’s evidence on this pivotal point on account of their divergence.
It stems from the above legal expositions that the appellant failed, woefully, to establish that he attempted, to perform his own obligation under paragraph 3 of exhibit A-the purchase agreement-which is binding on the parties and the court alike on the footing of sanctity of contract, see Best (Nig.) Ltd. v. B.H. (Nig.) Ltd. (2011) 5 NWLR (pt. 1239) 95; A.G. Ferrero Co. Ltd. v. H.C. (Nig.) Ltd. (2011) 13 NWLR (pt. 1265) 592; Nwaolisah v. Nwabufor (2011) 14 NWLR (pt. 1268) 600; Ogundepo v. Olumesan (2011) 18 NWLR (pt. 1278) 54; UBN Plc v. Ajabule (2011) 18 NWLR (pt. 1278) 152; P.M. Ltd. v. The “M.V. Dancing Sister” (2012) 4 NWLR (pt. 1289)169. This is particularly so when it is realized that the parties fixed time as to its performance thereby making time the essence of the contract, see Nwaolisah v. Nwabufor (supra). In view of the appellant’s failure to prove that attempt to repurchase the vehicle, in accordance with the terms of Exhibit A, it is not in consonance with the law to hold the respondent responsible as the party that breached their agreement to make way for the success of the appellant’s suit. By the binding terms of Exhibit A, the appellant’s right to repurchase the vehicle was foreclosed/truncated after 12/02/2005, leaving him to succeed thereafter at the discretion of the respondent. The terms may reek or smell of harshness against the appellant, but he is bound by them on the inviolable principle of sanctity of contract.
The appellant picked quarrel with the lower court’s reference to exhibit BI instead of exhibit B as recorded by it after its admission. I have given an in-depth study and comparison between exhibits A and B, found on pages 9 – 10 and 16 – 17 of the record respectively, and I entertain no, slightest, doubt that they are strikingly identical, one mirrors the other. They are the agreement entered into by the parties on 13/01/2005. The lower court’s placement of “I” as a suffix after B is a slip which cannot, in law, defeat the soundness/correctness of its decision, see Kalu v. Odili (1992) 6 SCNJ 76. At worst, this court can expunge it as inadmissible without any harm to the decision. The reason is that exhibit A, which is its siamese twins, as it were, is valid and extant in the matter. I, therefore, declare the lower court’s addition of ‘I’ after B, in exhibit B, as too infinitesimal and trifling as to torpedo its decision.
The appellant derided the decision as occasioning miscarriage of justice on him. A miscarriage of justice, a mantra constantly employed by losing parties in court proceedings, is a departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all. It, also, connotes failure of justice – when what happened is not justice according to law, see Amadi v. NNPC (2000) 10 NWLR (pt.674) 76; Ojo v. Anibire (2004) 5 SCNJ 56; State v. Ajie (2000) 7 SCNJ 1. By law, a miscarriage of justice occurs in a proceeding before a court when that court, after a proper examination of the case including the evidence, is of the view that it is reasonably probable that a result more favourable to the appealing party would have been arrived at without the error complained of, see Akpan v. Bob (supra).
Having regard to the foregoing highlights, I am clear in my mind that the appellant, going by the apparent presence of the weak and contradictory evidence, would not have earned a more favourable result, but for the complaint he has lodged before this court. I, therefore, hold that the lower court’s decision has not, in any manner, precipitate/inflicted any miscarriage of justice on the appellant. As already noted, it was the appellant that could not keep faith with clause 3 of the exhibit A as to the time frame stipulated therein coupled with the bald fact that his evidence was antithetical to his pleading thereon.
The appellant, not resting on his oars, went further to castigate the decision of the lower court as being perverse. A verdict of court is perverse when: it runs counter to the evidence and pleadings before it, a court takes into account matters it ought not to take into consideration, a court shuts its eyes to the evidence or it has occasioned a miscarriage of justice, see Lagga v. Sarhuna (2008) 16 NWLR (pt 1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd. (2009) 5 NWLR (pt. 1133) 181; Osuji v. Ekeocha (supra).
I have matched the findings of the lower court in its judgment sought to impugned with the negative features of perverse decision with a view to ascertaining whether the former come within the latter. It seems clear to me that the findings are consistent or in tune with the evidence and pleadings furnished before it. The corollary of that is plain. It is that the lower court did not turn a blind eye to the evidence placed before it nor did it consider extraneous matters in its decision, particularly as I had punctured/doused the appellant’s grouse against exhibit BI. These are in addition to my finding that the decision does not cause any miscarriage of justice on the appellant. There are no extenuating reasons to tinker/disturb that solemn finding. In all, I hold that the decision does not deserve that stricture of perversity/perversion passed on it by the appellant to warrant an interference by this court.
In the aggregate, given the legal dissection displayed above, I find no reason to impeach the decision of the lower court as it, amply, exhibits all the ingredients of an unassailable judgment. In sum, I resolve the solitary issue in this appeal against the appellant.
Overall, the net effect of resolving the mono issue in the appeal against the appellant is not a moot question. It demonstrates that the appeal is devoid of any iota of merit. Consequently, I dismiss it. The parties shall bear their respective costs of prosecuting and defending the ill-fated appeal.
Counsel:
I must place on record, ex abundant cautela, that my consideration of the appeal and dismissal of same serve only the legally required object of making my view points known for purpose of appeal the Supreme Court. Before this Court, my finding, during the consideration of the respondent’s Preliminary Objection, that the appeal is incompetent, owing to proliferation of issues, still hunts it. Accordingly, the appeal still remains struck out on ground of incompetence.
ITA GEORGE MBABA, J.C.A.: I read in advance the lead judgment of my learned brother Obande F. Ogbuinye JCA, just delivered, and I agree with the reasoning and conclusion reached, that the appeal is devoid of merit and ought to be dismissed.
Appellant’s approach to the preliminary objection revealed great immaturity and in-competence. Even at the stage of the preliminary objection, Appellant still had opportunity to correct his error by admitting his fault and proceeding to seeking the leave of this Court (even if orally) to abandon two of the excess issues and the arguments thereunder and to adopt one that properly related to the omnibus ground of appeal. Appellant rather elected to stubbornly join issues with the Respondent in the preliminary objection, justifying his blunder, and then turned round to seek to profit from the blunder, by saying he would abandon issues 1 and 2 at the hearing! Even, at the hearing, he failed to abandon the said issues!
The law is trite that proliferation of issues over ground(s) of appeal operate against the Appellant, as such issues should be discountenanced, being defective. See the case of Afribank v. Yelwa (2011) ALL FWLR (Pt. 585) 296; CLAY IND. (NIG.) LTD. v. AINA (1997) 8 NWLR (PT. 516) 208 at 223; AYISA v. AKANJI (1995) PER ONU JSC.
Even upon considering the appeal on the merits Appellant’s arguments cannot fault the clear findings of the trial Court, relating to the quagmire of the evidence of the Appellant relating to the alleged date of approaching the Respondent to redeem the vehicle.
I think the Appellant was merely gambling, after missing the date line of recovery of the car. He appeared to be acting, propelled by ego to brow-beat the Respondent to surrender the car back to him (Appellant), after he may have made some fortune. Obviously, the cost and effort to recover the saloon 504 car appears difficult to situate it within honest quest to recover the property, considering the true value of the vehicle!
I think Counsel owe their clients and the Court a duty to ensure that cases fought in Court are founded on genuine facts and sound legal premises and not on primordial feelings of defence of ego or vendata.
With this and the more elaborate reasons in the lead judgment, I too hold that the appeal is devoid of merit and should be dismissed. It is hereby dismissed, and I abide by the consequential orders in the lead judgment.
PETER OLABISI IGE, J.C.A.: I read the draft of the judgment just delivered by my learned brother OGBUINYA, JCA and I fully endorse the well articulated judgment and I find that the appeal incompetent. It is accordingly struck out.
Appearances
Joseph Oboite, Esq.For Appellant
AND
O. M. Lawal, Esq.For Respondent
